Lord Freud in 2012 “I can reassure noble Lords that the decision-making process is and will continue to be consistent with these fundamental principles of public law” DWP not complying

10 February 2019

DWP is not complying with assurances given to Parliament by Lord Freud in 2012.

Here is the statement by Freud. It came about as a result of an amendment tabled by Lord Ramsbottom, a crossbench peer, to the 2012 Welfare Reform Bill , for which I lobbied as chair of Z2K, requiring Jobcentre officials to use the Wednesbury Principles when making decisions about claimants.

He refused the amendment but made a statement. The seminar he refers to was agreed between him and Lord Ramsbottom. The lawyer, Alan Murdie, explained Wednesbury. The seminar was attended by the Royal College of Psychiatrists, Liberty, CAB and charities committed to the relief of poverty who explained the probable consequences of the decisions j​o​bcentres were being asked to make in the Bill. It was also attended by Lord McKenzie, a Labour Peer, and Lord Kirkwood, a Lib Dem Peer.​

The Wednesbury Principles are enshrined in British common law. They require decision makers in Jobcentres in any government department and in all the courts right up to the Supreme Court to have regard to relevant facts, disregard irrelevant facts and to be rational. I attach a brief by the lawyer.

Lord Diplock. "By "irrationality" I mean what can by now be succinctly referred to as "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

4.15 pm

Lord Freud. We spoke about the Wednesbury principles at our seminar, and I can reassure noble Lords that the decision-making process is and will continue to be consistent with these fundamental principles of public law. The department strives to ensure that no decision is influenced by irrelevant factors and that decision-makers act in a rational and fair manner, taking into account all relevant matters before exercising a discretion. For example, the primary legislation expressly sets out that a conditionality sanction applies only if there is no good reason for the failure. In determining whether there is such good reason, decision-makers will have to consider all relevant matters raised by the claimant within a particular time period, including information about a claimant's health condition and financial circumstances.

For the first 10 years of Zacchaeus 2000 from 1997 we had a contract with Wycombe Magistrates Court to help people fill in their means statements for the magistrates when they couldn't pay their fines for shop lifting, unpaid TV licences etc. I was able to speak for vulnerable people to the magistrates as a McKenzie Friend (non-legally qualified volunteer) using the Wednesbury Principles. The reasons for non-payment of fines I often used where that;

income was too low and the fine disproportionate,

there has been a change of circumstances

they were now ill,

had had a baby,

now unemployed.

they had split from their partner

were now homeless

they were not in court when they were fined therefore the fine was as large as possible and needed reducing because they were on benefit.

The magistrates were able to help vulnerable people because they obeyed the Wednesbury Principles. A three month sanction is a worse punishment that a fine for theft. Here is a case I have recently helped.

Here is a lawyers descroption of the Wednesbury Principles.

JUDICIAL REVIEW

Judicial review can be used to control, Illegal or unlawful decisions - decisions which actually break the law or which a body has no power to make.

Procedural impropriety - where a body fails to follow its own procedural rules. ,

Unfair decisions e.g. where the decision maker is biased or where the proceedings are not conducted fairly e.g. denying a person a chance to put their case, refusing an adjournment in an appropriate case, listening to only one side of an argument receiving evidence with out allowing the other side to know about it, denial of cross examination and - refusal of a person legitimately acting as a McKenzie friend

Unreasonable decisions - decision making bodies with a discretion are expected to act reasonably

The leading case on this is Associated Provincial Picture Houses v Wednesbury Corporation (1948) 1 KB 223 which involved a local authority which banned persons under 16 going to the cinema on a Sunday. This was held to be an unreasonable decision; The Master of the Rolls, LordGreene explained that a decision making body was bound to act reasonably. If it acted unreasonably its decisions could be quashed on judicial review. Reasonableness in law consists of;

(1) Considering all relevant facts and information when making its decision.

(2) Disregarding irrelevant facts and irrelevant.information.

(3) Not acting perversely (i.e. irrationally)

These are the so-called "Wednesbury principles" - a decision which breaches these principles maybe said to be "Wednesbury unreasonable".

Thus, where a public body fails to consider a relevant fact or corisiders an irrelevant or acts in an irrational way it may be said to be "Wednesbury Unreasonable". (Many officials in public bodies have vague understanding of the existence of these principles - it can be worth reminding them of the case in correspondence!)

Alan Murdie, Barrister and (Then) Trustee Zacchaeus 2000 Trust.

22/11/05

The follwing letter was published by the Financial Times on the 2nd March.

Sir, The austerity target has been hit — with dire social costs. It has cut the incomes of poorest UK citizens by £18bn already, with another £12bn in the pipeline, and let their rents soar with the market. The impact of low income, debt and inequality on mental and physical health has been known by all governments for decades. Successive governments have refused, in the 2007, 2012 and 2016 welfare reform bills, to build a health impact assessment of their policies into law. There has been an unprecedented rise in the infant deaths of the babies of poor mothers since 2010, according to an analysis of the ONS mortality statistics published by the British Medical Journal.